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Contra Justice Ginsburg, the Hobby Lobby decision is no cause for alarm. Yet we should acknowledge and address a fear she highlights: the serious obstacles women face today in the realms of sex, marriage, and parenthood.

Larger Work:The Public Discourse

Publisher & Date:
The Witherspoon Institute, July 10th, 2014

Prior to the 2012 HHS Mandate, there were no “runs” on birth control suppliers, nor were there demonstrations in the streets by women demanding free birth control. Nowhere was there observed a dearth of women willing to work for businesses informed by a religious conscience on matters of contraception or abortion.

This should come as a shock to those predicting the end of women’s freedom as a result of the Supreme Court’s decisions in Hobby Lobby and Conestoga Wood. It should also shock those protesters screaming about women’s ovaries on the steps of the Supreme Court. It should even shock the president of the United States, who took time away from his deliberations concerning Ukraine, Iraq, and Syria, to tweet cleverly against this win for religious freedom. And perhaps it will deliver the biggest shock to Supreme Court Justice Ruth Bader Ginsburg, whose dissent in Hobby Lobby spoke of the “harm,” the “havoc,” and the threat to women’s “ability to participate equally in the economic and social life of the nation” posed by the decision. Media reaction has been predictably similar.

Supporters of religious freedom and of women’s freedom to speak for themselves shouldn’t count on the utter silliness of this line of thinking to cause it to self-destruct. In fact, Ginsburg’s way of measuring freedom, including women’s freedom, enjoys a lot of support. In the context of the mandate, I am referring to two points that are popular despite their irrationality. First: whenever the government creates a new entitlement, private actors’ refusal to provide it constitutes what Justice Ginsburg calls “depriving others of rights.” (One sees this dynamic in the context of same-sex marriage recognition laws as well.) Second: massively available and cheap or free contraception is absolutely foundational to women’s freedom.

Undoubtedly, it is difficult to offer pithy responses to these claims. Yet there are two responses that are not only logically necessary, but serve women’s flourishing in a superior manner.

These responses are, first, enumerating the myriad reasons that many women won’t be joining Justice Ginsburg in the panic room post-Hobby Lobby; and, second, acknowledging the “nerve” that Justice Ginsburg and her compatriots are plucking when they raise the prospect of women’s loss of control over sex and pregnancy.

Why Women Aren’t Panicked

Justice Ginsburg, like so many feminist activists of her generation, has a tendency to claim to speak for all women when she frames a grievance on women’s behalf. But relatively few women are actually affected by the majority opinion in Hobby Lobby. Poor women, and even women at several times the poverty level, already have free or subsidized birth control available from the state. Since 1970, they have been served by the National Family Planning Program (“Title X”). In 2010, Title X-funded sites served more than five million patients—69 percent at or below the poverty level and 31 percent above—at 4,389 service sites across all fifty states and the District of Columbia. Likewise, both Title XIX of the Social Security Act (Medicaid) and Title XX of the Social Security Act provide federal funds to states for pregnancy prevention services available to both adolescents and adults. The federal Maternal and Child Health Block Grant funds 610 school-based or school-linked health clinics. In 2012, Planned Parenthood Federation of America alone received $540 million of government grants and reimbursements directed largely to providing lower-cost contraception. Then there is all the funding for low-cost Community Health Centers provided via the Affordable Care Act.

Also, generally speaking, the Centers for Disease Control report that cost does not even make the list of “frequently cited reasons for nonuse” among the 11 percent of sexually active women not using contraception. A Guttmacher source claimed that only 3.7 percent of the total sample of women seeking abortions listed cost as a barrier to contraceptive usage. Note that this study’s authors did not even investigate whether these women were eligible for state contraception programs or handouts from Planned Parenthood.

Women working in small businesses or those with “grandfathered” health plans were never entitled to free contraception under the mandate. Furthermore, women working for larger businesses nearly always have contraceptive coverage. According to that indefatigable contraception and abortion promoter the Alan Guttmacher Institute, “almost every reversible and permanent contraceptive method available” was covered by 90 percent of health insurance plans before the mandate.

Justice Ginsburg Doesn’t Speak for All Women

There is also a sizable cohort of women who dislike (or even hate) the side effects of some forms of contraception—especially those of hormonal methods such as the pill, Depo-Provera, and IUDs. Ironically, these are the more costly methods that Justice Ginsburg and other activists hope the mandate will most promote. You can find women hating hormonal birth control for decidedly nonreligious reasons in books like Holly Griggs Spall’s Sweetening the Pill, or in articles on popular news sites.

Then there is the significant group of women who have suffered some alarming health effects from their birth control. Think of the 10,000 women suing Bayer Pharmaceuticals for blood clots or strokes related to the Yaz pill (Bayer has paid more than $1.6 billion in settlements so far), or the 3,800 women suing Merck & Co. for the blood clots, strokes and heart attacks related to the Nuva-Ring. Even birth-control cheerleaders like Vanity Fair, the Washington Post, and the New York Times acknowledge the serious or fatal effects of some methods for some women, or their role in increasing AIDS/HIV transmission. Not to mention the World Health Organization or the American Cancer Society, organizations that label some forms of the pill carcinogenic to some parts of the body, while noting that some forms might mitigate the risk of cancer in others.

And what of women who are infertile, menopausal, fond of natural methods of fertility management, or not sexually active? What about women who have no moral objection to contraception, but either respect the good of religious freedom in a free society, or even appreciate, substantively, the thoughtful witness religious people offer on matters of sex and marriage? What about women who fear the heavy hand of government and the slippery slope that Justice Ginsburg fervently constructs? That is, they fear the idea that all government mandates become baseline “rights,” impervious to religious or other exemptions.

What about women who are just sick and tired of the obsession with contraception and abortion—women starving for concrete policies allowing them to manage the costs of education and the demands of work, and also to marry and have kids?

This adds up to a lot of women who are not nodding their heads in agreement over the “you can take my free contraception out of my cold, dead hands” tone of the Ginsburg dissent, or other frenzied post-Hobby Lobby laments.

How Birth Control Became a Proxy for Women’s Freedom

But there is an important caution respecting this line of argument. Even though Ginsburg’s voice doesn’t represent many women, there is a sense in which her arguments still have power. For significant and entrenched reasons, birth control has become a proxy for “women’s freedom” in the minds of many women, even if they’re not actually touched by the Hobby Lobby decision.

A significant number of women have good reasons to be anxious about the possibility of becoming pregnant when they are not fully willing and prepared. This is largely due to the situation in the “marketplace” of male-female relationships and the lack of policies helping mothers manage work outside the home.

First, regarding this marketplace, today it fosters non-marital sex, cohabitation, later marriage, abortion, and single parenthood (and thus female poverty). These phenomena are disadvantageous to women, and in the minds of many, can be mitigated or avoided by contraception. The mechanisms by which these results are produced are brilliantly summarized by leading economists.

The all-too-brief summary is as follows: when birth control and abortion separate sex from kids, non-marital sexual encounters increase as the perceived “risks” (children) appear to decline. Sex easily becomes the “price” of obtaining a romantic relationship, and “shotgun weddings” following a pregnancy disappear because women have the right of access to abortion. But because there are so many more uncommitted sexual encounters, and because contraception regularly fails, and because of continuing aspirations for children and relationships, cohabitation skyrockets, nonmarital births and abortions increase, and marriage is delayed or forgone (despite women’s fertility patterns and persistent desire for children). Single parenthood by women (and therefore poverty) becomes far more common.

It wasn’t just the “technology shocks” of the pill and abortion that shaped this marketplace; the law cooperated. The feminist legal establishment of the latter part of the twentieth century argued (and the Supreme Court agreed) that children imposed serious disadvantages on women. Contraception and abortion were thus achieved as constitutional rights. At the same time, leading feminist voices glamorized paid work and failed to pursue policies harmonizing motherhood with work outside the home. They played down differences between women and men, allowed the “ideal male worker” model to dominate women’s work lives, and let birth control and abortion policy constitute nearly the entire “women’s agenda.”

Truly Compassionate Solutions

In the end, women have all the rights imaginable to avoid children, but few besides “unpaid leave” and paltry tax breaks to support their having children. Poorer women are also less likely to have ongoing male support in rearing their children and more likely to face inflexible work schedules and skyrocketing child-care costs.

Modern women of all income levels face formidable obstacles when it comes to parenting, and birth control is offered as the compassionate solution. Ironically, many of these obstacles are a result of the marketplace for relationships and marriage that birth control and abortion helped to create. Nevertheless, to keep women saturated in this marketplace from falling prey to the “birth control is freedom” argument, we must address it head-on.

We must clearly draw attention to the nature and workings of the marketplace of relationships today. Ask women to honestly confront the question whether it is to their advantage to participate according to this market's current terms. In particular, point out the good of renewing female solidarity toward relinking sex, commitment, and children for the benefit of women, children, and men as well. Finally, vocally offer to cooperate on public and private policies enabling women to manage the demands and costs of education and employment, in harmony with their aspirations to marry and have children.

How I wish this work were as simple as parroting the simplistic claim that Hobby Lobby harms women. It isn’t. But the alternative—allowing Ginsburg to stand unchallenged—is unacceptable if we are to be fair to women and to preserve religious freedom for both women and men.

Helen M. Alvaré is Professor of Law at George Mason University, a senior fellow at the Witherspoon Institute, and co-founder of WomenSpeakforThemselves.com.